Teague v. Lane Petition for Writ of Certiorari
Public Court Documents
October 6, 1986

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Brief Collection, LDF Court Filings. Teague v. Lane Petition for Writ of Certiorari, 1986. 4866aed3-c59a-ee11-be37-00224827e97b. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/6cf1e166-99d0-4dc7-bd7a-fcbe194da552/teague-v-lane-petition-for-writ-of-certiorari. Accessed April 27, 2025.
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No. IN THE SUPREME COURT OF UNITED STATES October Term, 1986 FRANK DEAN TEAGUE, Petitioner, v. MICHAEL LANE, Director, Department of Corrections, and MICHAEL O'LEARY, Warden, Stateville Correctional Center, Respondents. PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT STEVEN CLARK Deputy Defender *PATRICIA UNSINN Assistant Appellate Defender Office of the State Appellate Defender State of Illinois Center 100 West Randolph St., Suite 5-500 Chicago, Illinois 60601 (312) 917-5472 COUNSEL FOR PETITIONER *COUNSEL OF RECORD iMUpW ' i ' U • > m . ljmjjJiC.w QUESTIONS PRESENTED FOR REVIEW Whether the Sixth Amendment fair cross-section requirement prohibits the prosecution's racially discriminatory use of the peremptory challenge. Whether Batson should be applied retroactively to all convictions not final at the time certiorari was denied in McCray v. New York in order to correct the inequity and confusion resulting from the intentional postponement of the re-examination of Swain. Whether a defendant overcomes the presumption of correctness of the prosecution's proper use of its peremptory challenges, as recognized by Swain v. Alabama, where examination of the prosecutor's volunteered reasons for its exercise of its chal lenges to exclude black jurors demonstrates that the prosecution has engaged in racial discrimination. i m m m m ****** TABLE OF CONTENTS Questions Present for Review................................ j_ Table of Contents........................................... £j_ Table of Authorities........................................ j_ii Introduction................................................ 1 Opinion Below............................................... 1 Statement of Jurisdiction................................... i Constitutional Provisions Involved.......................... 2 Statement of the Case....................................... 2 Reasons for Allowance of Writ............................... 5 WHETHER THE SIXTH AMENDMENT FAIR CROSS-SECTION REQUIREMENT EXTENDS TO THE PETIT JURY SO AS TO BAR THE RACIALLY DISCRIMINATORY USE OF THE PEREMPTORY CHALLENGE IS A RECURRING QUESTION ON WHICH THIS COURT EXPRESSED NO VIEW IN BATSON, BUT WHICH REMAINS CONTROVERSIAL, RESULTING IN CONFLICTING DECISIONS FROM BOTH STATE AND FEDERAL COURTS, THUS MERITING THIS COURT'S REVIEW..'........................ 6 BATSON SHOULD BE APPLIED RETROACTIVELY TO ALL CONVICTIONS NOT FINAL AT THE TIME CERTIORARI WAS DENIED IN McCRAY v. NEW YORK IN ORDER TO CORRECT THE INEQUITY AND CONFUSION WHICH RESULTED WHEN THIS COURT, WHILE SIGNALING THAT SWAIN WAS NO LONGER DISPOSITIVE, INTENTIONALLY DELAYED A DECISION ON THE ISSUE RESOLVED BY BATSON.............. 8 THE DIRECT CONFLICT BETWEEN THE DECISIONS OF THE EIGHT AND NINTH CIRCUIT COURTS OF APPEALS AND THE SEVENTH CIRCUIT COURT OF APPEALS, REGARDING WHETHER AN EQUAL PROTECTION VIOLATION MAY BE PROVEN PURSUANT TO SWAIN v. ALABAMA, OTHER THAN BY PROOF OF A SYSTEMATIC EXCLUSION OF BLACK JURORS BY PEREMPTORY CHALLENGE IN CASE AFTER CASE, A QUESTION LEFT OPEN BY SWAIN, SHOULD BE RESOLVED BY THIS COURT............... 11 Conclusion.................................................. 13 Appendix A Unpublished and vacated panel decision of the Seventh Circuit Court of Appeals reversing district court Appendix B Order of Seventh Circuit Court of Appeals directing rehearing en banc, reported at 779 F.2d 1332 (1985) Appendix C Opinion of the en banc United States Court of Appeals for the Seventh Circuit, reported at 820 F.2d 832 (1987) Appendix D Unpublished order of the United States District Court for the Northern District of Illinois denying habeas corpus relief to Petitioner, dated August 8, 1984. ii / TABLE OF AUTHORITIES CASES PAGES Allen v. Hardy, 106 S.Ct. 2878 (1986)............. 7 Apodaca v. Oregon, 406 U.S. 404 (1972)............ 7 Ballew v. Georgia, 435 U.S. 223 (1978)............ 7 Batson v. Kentucky. 106 S.Ct. 1712 (1986)......... passim Booker v.Jabe, 775 F.2d 762 (6th Cir. 1985), vacated, 106 S.Ct. 3289, aff'd on reconsideration, 801 F.2d 871 (1980), cert, denied, 106 S.Ct. 3289...... 6, 7 Desist v. United States. 394 U.S. 244 (1969)....... 8 Fields v. People, 732 P.2d 1145 (Colo. 1987)....... 7 Garrett v. Morris, 815 F.2d 509 (8th Cir. 1987).... 12 Granberry v. Greer, 95 L.Ed.2d 119 (1987).......... 13 Griffith v. Kentucky. 107 S.Ct. 708 (1987)......... 8, 9 Lockhart v. McCree, 106 S.Ct. 1758 (1986).......... 7 Mackey v. United States, 401 U.S. 667 (1971)....... 8, 9, 10 McCray v. Abrams, 750 F.2d 1113 (2nd Cir. 1984).... 7 McCray v. New York, 461 U.S. 961 (1983)............ 9 Roman v. Abrams, 41 CrL 2245 (2nd Cir. 6/9/87).... 6, 7 Taylor v. Louisiana, 419 U.S. 522 (1975)........... 7 Solem v. Stumes, 465 U.S. 638 (1984)............... 10 Swain v. Alabama, 380 U.S. 202 (1965).............. 9, 11, 12 Ulster County Court v. Allen, 442 U.S. 140 (1979)... 13 United States v. Johnson, 457 U.S. 537 (1982)....... 10 United States ex rel. Yates v. Hardiman, 656 F.Supp.1006 ( U . m : 1987).. “ T .'........... .. 6, 7 Wainwright v. Sykes, 433 U.S. 72 (1977)............. 13 Weathersby v. Morris, 708 F.2d 1493 (9th Cir. 1983).. 12 iii No. IN THE SUPREME COURT OF UNITED STATES October Term, 1986 FRANK DEAN TEAGUE, Petitioner, v. MICHAEL LANE, Director, Department of Corrections, and MICHAEL O'LEARY, Warden, Stateville Correctional Center, Respondents. INTRODUCTION TO THE CHIEF JUSTICE AND ASSOCIATE JUSTICES OF THE SUPREME COURT OF THE UNITED STATES: May it Please the Court: Petitioner, Frank Dean Teague, respectfully prays that this Court issue a writ of certiorari to review the en banc decision of the United States Court of Appeals for the Seventh Circuit. OPINIONS BELOW The original panel opinion reversed the district court's denial of habeas corpus relief. That panel decision is unreport ed but is attached to this Petition as Appendix A. The panel opinion was vacated and the cause was set for rehearing en banc pursuant to Circuit Court Rule 16(e). That order is reported at 779 F.2d 1332 (7th Cir. 1985) and is attached as Appendix B. On May 11, 1987, the en banc Court of Appeals affirmed the decision of the district court denying habeas corpus relief, Cudahy and Cummings, JJ., dissenting. That opinion is reported at 820 F.2d 832 (7th Cir. 1987) and is attached as Appendix C. The district court order granting summary judgment in favor of Respondents is unreported and attached as Appendix D. STATEMENT OF JURISDICTION The jurisdiction of this Court is invoked pursuant to 28 - 1 - .*.» v .* < >1». Mlr C lU f W V it" ̂ j' < » I I «11* I- IIJI"j ^ 9m v-; U.S.C. 1254(1). This Petition is being filed within 90 days of the decision of the Court of Appeals, which issued on May 11, 1987. CONSTITUTIONAL PROVISIONS INVOLVED AMENDMENT VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense. AMENDMENT XIV Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and-of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of laws. STATEMENT OF THE CASE Frank Teague, a black man, was convicted of the offense of armed robbery of an A & P supermarket and attempt murder of police officers who were shot at following the robbery. His defense was insanity which he contended was caused in part by his wrongful incarceration in a federal penitentiary for almost eight years. The jurors who were selected and sworn to decide the issue of his guilt or innocence were white, the prosecution having elected to exercise all ten of the peremptory challenges afforded it by statute, 111.Rev.Stat., Ch. 38, Sec. 115-4(e), to excuse prospective jurors who were black. Defense counsel also excused a prospective black juror because she was married to a -2- police officer and his client was charged with attempt murder of police officers. (R. 97) When objection was made during jury selection to the prose cution's use of its peremptory challenges to exclude blacks from the jury, the prosecutor represented that he was attempting to achieve a balance of men and women and age groups, noting also defense counsel's use of a single peremptory to excuse a prospec tive black juror and that the prosecution had also excused a white juror who was a prospective alternate. (R. 97, 98, 177, 178) The trial judge made no finding with respect to the validi ty of the State's reasons for exercise of its challenges, but the record refutes the contention that blacks were eliminated from the jury in an effort to achieve sexual and age balance. See Appendix A, panel opinion, pp. 24-27. Although not disputing that the prosecution had utilized its peremptory challenges solely for the purpose of excluding a racial group from the jury, the Illinois Appellate Court conclud ed that Teague was not entitled to any relief from his conviction because he had made no showing of systematic exclusion of the group as required by Swain v. Alabama, 380 U.S. 202 (1965). The Court declined to follow People v. Wheeler, 22 Cal. 3d 258, 584 P.2d 748 (1978) on the basis that the remedy it proposed was vague and uncertain and would alter the nature of the peremptory challenge. The Court concluded that abolition of the peremptory challenge by the legislature would be the appropriate means to end the prosecution's practice of using its challenges to exclude a racial group. People v. Teague, 108 Ill.App.3d 891, 439 N.E.2d 1066 (1st Dist. 1982)(Campbell, J. dissenting). The Illinois Appellate Court denied a Petition for Rehearing and the Illinois Supreme Court denied leave to appeal. People v. Teague, 449 N.E.2d 820 (111. 1983)(Simon,J. dissenting). This Court denied a Petition for Writ of Certiorari. Teague v. Illinois, 464 U.S. 867 (1983)(Marshall and Brennan, JJ., dissenting). On March 5, 1984, Petitioner filed a Petition for Writ of Habeas Corpus in the United States District Court for the North ern District of Illinois, complaining that his Sixth and Four teenth Amendment rights were violated when the prosecution -3- ; v j < T- - utilized its peremptory challenges to exclude black jurors. In his Brief submitted in support of the Petition, Teague asked the district court to accept the invitation of this Court in McCray v. New York, 461 U.S. 961 (1983) to re-examine the issue of whether the Constitution prohibits the use of peremptory chal lenges to exclude a racial group from the jury and to conclude that an accused is denied his right to a jury drawn from a fair cross section of the community when the prosecutor employs peremptory challenges to exclude jurors on the basis of race. (Petitioner's Brief, p . 16) Petitioner also cited in support of his argument McCrav v. Abrams, 576 F.Supp. 1244 (E.D.N.Y.1983), which held that the Equal Protection Clause, either alone or in in conjunction with the Sixth Amendment, prohibits the racially discriminatory use of the peremptory challenge. (Petitioner’s Brief, p. 15) Respondents moved for summary judgment, contending Swain v. Alabama, 380 U.S. 202 (1965) controlled. (Memorandum in Support of Respondents' Motion for Summary Judgment) Petitioner cross-moved for summary judgment and cited in support thereof Weathersby v. Morris, 708 F.2d 1493 (9th Cir. 1983), wherein the Court held that if a prosecutor volunteers explanations for his challenges, those explanations may be reviewed to determine whether there has been a perversion of the peremptory challenge contrary to Swain. (Memorandum In Support of Cross-Motion, p. 6) The district court on August 8, 1984 granted summary judgment in favor of Respondents, concluding that although it found Petition er's arguments persuasive and might be inclined to adopt his reasoning if the court were writing on a clean slate, the issue was foreclosed by Swain and Seventh Circuit decisions declining to depart from Swain. (Order p. 2) In the Court of Appeals, Petitioner again urged that Swain be re-examined and a procedure such as that outlined by the Courts in McCray v. Abrams or Weathersby v. Morris be adopted whereby an accused could complain of the prosecutor's racially discriminatory use of peremptory challenges in a single case. (Appellant's Brief, pp. 15, 25) A divided panel concluded that the Sixth Amendment does bar the racially discriminatory use of peremptory challenges so as to deprive an accused of the fair -4- I n-i t * possibility of obtaining a representative jury, but that opinion was vacated and the case set for rehearing en banc pursuant to Circuit Rule 16(e). U.S. ex rel. Teague v. Lane, 779 F.2d 1332 (7th Cir.1985). Following the decision of this Court in Batson v. Kentucky. 106 S.Ct. 1712 (1986), the parties were directed by the Court of Appeals to file additional memoranda discussing the impact of Bats°n on this case. Petitioner argued that his Sixth Amendment claim remined viable (Memorandum of Appellant, pp. 3-7) and that even if it would be determined that Batson would not be given full retroactive effect, Batson should apply to all cases, including Petitioner's, not yet final at the time certiorari was denied in McCray v. New York, 461 U.S. 961 (1983). (Memorandum of Appellant, pp. 14-18) In response to Respondents' argument, made for the first time in its post-Batson memorandum, that Petitioner had waived any equal protection claim by a procedural default in the state court (Memorandum of Respondents, pp. 2-6), Petitioner argued there had been-no procedural default, whether or not the equal protection claim had been raised in state court, because that claim had been rejected on its merits by the state court, which had denied Petitioner relief on the grounds that Swain controlled. Petitioner cited Ulster County Court v. Allen, 442 U.S. 140 (1979), United States ex rel. Ross v. Franzen, 688 F.2d 1181 (7th Cir. 1982) and Thomas v. Blackburn, 623 F.2d 383 (5th Cir. 1980) as support for this argument. (Responsive Memorandum, pp. 3-4) Following en banc reargument, the Court of Appeals de termined that Allen v. Hardy, 106 S.Ct. 2878 (1986) foreclosed retroactive application of Batson to Petitioner, Teague v. Lane, 820 F.2d 832, 834 and n.4 (1987), that Petitioner had not made a showing of an equal protection violation pursuant to Swain, even assuming that claim was not procedurally barred by Wainwright v. Sykes, 433 U.S. 72 (1977), 829 F.2d at 834 n.6, and that the Sixth Amendment fair cross-section requirement was inapplicable to the petit jury. REASONS FOR ALLOWANCE OF WRIT WHETHER THE SIXTH AMENDMENT FAIR CROSS-SECTION REQUIREMENT -5- 1' m m m * * * * m * m f c EXTENDS TO THE PETIT JURY SO AS TO BAR THE RACIALLY DIS CRIMINATORY USE OF THE PEREMPTORY CHALLENGE IS A RECURRING QUESTION ON WHICH THIS COURT EXPRESSED NO VIEW IN BATSON» *----- BUT WHICH REMAINS CONTROVERSIAL, RESULTING IN CONFLICTING DECISIONS FROM BOTH STATE AND FEDERAL COURTS, THUS MERITING THIS COURT'S REVIEW. Petitioner was tried by an all white jury as a consequence of the prosecution's use of all ten of its peremptory challenges to exclude black jurors. Petitioner contends the prosecution's racially discriminatory use of its challenges violated his Sixth Amendment right to be tried by a jury drawn from a fair cross section of the community. Petitioner does not complain that the jury that was chosen in his case did not mirror the community or insist that he is entitled to a jury of any particular composi tion, but contends that the fair cross-section requirement prohibits the prosecution's use of peremptory challenges in a racially discriminatory manner to unreasonably restrict the possibility the jury is comprised of a fair cross section of the community. This issue was expressly left undecided by this Court in Batson v. Kentucky, 106 S.Ct. 1712, 1716 n.4 (1986), and considerable conflict exists among the circuit courts of appeals and other courts regarding whether the prosecution's racially discriminatory use of the peremptory challenge violates the Sixth Amendment. Therefore, it is appropriate that this Court grant certiorari. Both the Second and Sixth Circuit Courts of Appeals have adopted the view that the Sixth Amendment fair cross-section requirement extends to the petit jury so as to bar the prose cution's use of the peremptory challenge on the basis of race. Roman v. Abrams, 41 CrL 2245 (2nd Cir. 6/9/87); Booker v. Jabe, 775 F.2d 762 (6th Cir. 1985), vacated, 106 S.Ct. 3289, aff’d on reconsideration, 801 F.2d 871 (1986), cert, denied, 107 S.Ct. 910. The split among the circuit courts of appeals and various state courts on this issue was noted in United States ex rel. Yates v. Hardiman, 656 F.Supp. 1006, 1012 (N.D.I11. 1987), which court concluded that the fair cross-section requirement is violated where jurors are peremptorily challenged by the -6- prosecution because they are the same race as the defendant. See also Fields v. People. 732 P.2d 1145 (Colo. 1987)(claim of racially discriminary use of peremptory challenges subject to Sixth Amendment analysis). The Seventh Circuit Court of Appeals rejected Petitioner's argument on the grounds that the fair cross-section requirement has no applicability to the petit jury, only to the venire from which the petit jury is drawn. Teague, 820 F.2d at 839. While Lockhart v. McCree, 106 S.Ct. 1758 (1986) has been interpreted as supporting that position, the question was left unresolved in Lockhart since this Court determined Witherspoon-excludables were not a distinctive group in the community for Sixth Amendment purposes. 106 S.Ct. at 1765. That this Court vacated and remanded McCray v. Abrams, 750 F.2d 1113 (2nd Cir. 1984) and Booker v. Jabe, 775 F.2d 762 (1985) in light of Allen v. Hardy, 106 S.Ct. 2878 (1986) and Batson v. Kentucky, 106 S.Ct 1712 (1986), and not in light of Lockhart, has also been held indicative of an absence of intent that Lockhart settles the Sixth Amendment issue. Yates, 656 F.Supp. at 1015. Prior decisions of this Court provide a basis to conclude that the fair cross-section requirement extends beyond the jury venire. In Apodaca v. Oregon, 406 U.S. 404, 413 (1972), this Court expressed the view that the fair cross-section requirement forbids "systematic exclusion of identifiable segments of the community from jury panels and from the juries ultimately drawn from those panels." (Emphasis added) Louisiana's special ex emption for women was held to violate the Sixth and Fourteenth Amendments in Taylor v. Louisiana, 419 U.S. 522, 538 (1975) not merely because women were thereby excluded from the jury pool but because it "operate[d] to exclude them from petit juries." Trial by jury of less than six person was held to violate the Sixth Amendment in Ballew v. Georgia, 435 U.S. 223, 237 (1978) because it deceases the opportunity for meaningful and appropriate representation of a cross section of the community on the petit jury, not on the panel or venire from which the jury is drawn. Permitting the prosecution to exercise its peremptory challenges to excuse perspective jurors on the basis of race -7- ■; r: .* “ alone similarly violates the fair cross-section requirement because it presents no less an obstacle to the possibility of minority representation on the jury. Selection of a jury drawn from a fair cross section of the community is not an end in itself, but contemplates the possibility that the petit jury will be similarly comprised. The fair cross-section requirement would be illusory if no restriction existed on the ability of the prosecution to interpose an obstacle to minority representation on the petit jury so long as minorities were not excluded from the venire. The controversy over the continued vitality of the Sixth Amendment analysis to the peremptory challenge issue persists. A direct conflict exists among the circuit courts of appeals regarding whether the fair cross-section requirement can have any applicability to the petit jury. This Court declined to adopt any view on this issue in Batson but the continued divergence of opinions demands that this Court grant certiorari to finally resolve the dispute. BATSON SHOULD BE APPLIED RETOACTIVELY TO ALL CONVICTIONS NOT FINAL AT THE TIME CERTIORARI WAS DENIED IN McCRAY v. NEW YORK IN ORDER TO CORRECT THE INEQUITY AND CONFUSION WHICH RESULTED WHEN THIS COURT, WHILE SIGNALING THAT SWAIN WAS NO LONGER DISPOSITIVE, INTENTIONALLY DELAYED A DECISION ON THE ISSUE RESOLVED BY BATSON. In Griffith v. Kentucky, 107 S.Ct. 708 (1987), this Court extended the benefits of Batson v. Kentucky, 106 S.Ct. 1712 (1986) to all cases pending on direct review or not yet final at the time the decision in Batson was reached. In a concurring opinion, Justice Powell expressed his agreement with the views of Justice Harlan respecting rules of retroactivity as stated in Mackey v. United States. 401 U.S. 667, 675 (1971)(Harlan, J. concurring and dissenting) and Desist v. United States, 394 U.S. 244, 256 (1969)(Harlan, J. dissenting), and his hope that, when squarely presented with the question, the Harlan view that habeas petitions should generally be judged according to the constitu tional standards existing at the time of the conviction, would be - 8 - '••V \t 1 « • «*' * • * X A ' '*■- ■ adopted by the Court. Griffith, 107 S.Ct. at 716 (Powell, J., concurring). Petitioner submits that this case squarely p-resentes the issue of the retroactivity of decisions to habeas petitions and asks that a rule of retroactivity be adopted to extend the benefits of Batson to those habeas corpus petitioners, including Petitioner herein, whose cases were not yet final at the time this Court denied certiorari in McCray v. New York. 461 U.S. 961 (1983). In Harlan's view, generally, the law prevailing at the time a conviction became final is to be applied in adjudicating habeas petitions. The justification for extending the scope of habeas to all alleged constitutional errors being to force trial and appellate courts in the federal and state system to toe the constitutional mark, it is unnecessary to apply new constitution al rules on habeas to serve that interest. Mackey, 401 U.S. at 688. At the time Petitioner's conviction became final,^ the state of the law respecting a prosecutor's discriminatory use of peremptory challenges was uncertain. When certiorari was denied in McCray v. New York, 461 U.S. 961 (1983), Justices Brennan and Marshall dissented, while Justices Stevens, Powell and Blackman joined in an opinion stating they recognized the importance of the issue presented, but believed further consideration of the problem by other courts would enable the Court to address the problem more wisely at a later date and asked that the various states serve as laboratories in which the issue would receive further study before it was finally addressed. This concurrence, coupled with the dissent, signaled that the state courts were no longer bound by Swain v. Alabama, 380 U.S. 202 (1965). At the same time the Court intentionally delayed resolution of the issue on the assumption that lower courts would accept the Court's invitation to re-examine the issue on its merits, an assumption which proved to be untrue in Illinois which continued to hold the issue foreclosed by Swain. ^Certiorari was denied in McCray on May 31, 1983. Petitioner's conviction became final when certiorari was denied on October 3, 1983. -9- Just as Justice Harlan found it indefensible for the Court to "[fish] one case from the stream of appellate review, [use] it as a vehicle for pronouncing new constitutional standards, and then [permit] a stream of similar cases to flow by unaffected by that new rule," Mackev, 401 U.S. at 679 (Harlan, J., dissenting), it is indefensible to fish one case from the stream of appellate review, signal that a change is forthcoming, yet leave it entire ly to the discretion of lower courts whether to follow precedent that was at that point questioned or discredited, though not expressly overruled. In intentionally delaying a decision, this Court increased the possibility that different constitutional protection would be meted out to defendants simultaneously subjected to identical constitutional deprivation, which is inconsistent with the goal of treating similarly situated defen dants similarly. United States v. Johnson, 457 U.S. 537, 556 (1982) . Moreover, since the opinion of Justice Stevens respecting the denial of certiorari in McCray made it difficult if not impossible for. lower courts to discern what was the prevailing state of the law since they were cast in the role of laboratories where the law was open to experimentation, lower courts were unable to determine after McCray if they were "toeing the constitutional mark." Solem v.Stumes, 465 U.S. 638, 653 (1983) . The failure of this Court to provide firm guidance to the lower courts from the time of denial of certiorari in McCray until Batson compels the conclusion that if Batson is to be given limited retroactive effect, it should be measured from the date of denial of certiorari in McCray and be held applicable to all 2cases then pending on direct review. The inequity and confusion which resulted from the Supreme Court's intentional postponement of resolution of the issue of the vitality of Swain can only be corrected by extension of the benfits of Batson to all those thus affected. This holding would be consistent with this Court's resolution of Allen v. Hardy , 106 S.Ct. 2878 (1986) inasmuch as Allen's conviction was final when certiorari was denied inMcCray. -10- >*nw in». THE DIRECT CONFLICT BETWEEN THE DECISIONS OF THE EIGHTH AND NINTH CIRCUIT COURTS OF APPEALS AND THE SEVENTH CIRCUIT COURT OF APPEALS REGARDING WHETHER AN EQUAL PROTECTION VIOLATION MAY BE PROVEN PURSUANT TO SWAIN v. ALABAMA OTHER THAN BY PROOF OF A SYSTEMATIC EXCLUSION OF BLACK JURORS BY PEREMPTORY CHALLENGE IN CASE AFTER CASE, A QUESTION LEFT OPEN BY SWAIN, SHOULD BE RESOLVED BY THIS COURT. Even should this Court decline to hold Batson v, Kentucky, 106 S.Ct. 1712 (1986) has any retrospective application to his case, Petitioner contends that he is entitled to relief from his conviction because the record establishes an equal protection violation pursuant to Swain v. Alabama, 380 U.S. 202 (1965). In Swain, this Court reaffirmed that a "State's purposeful or deliberate denial to Negroes on account of race of participation as jurors in the administration of justice violates the Equal Proctection Clause." 380 U.S. at 204. However, after reviewing the purpose and function of the peremptory challenge system, it concluded that a presumption must exist in any particular case that the prosecution is using its challenges to obtain a fair and impartial jury to try the case before the court, and that this presumption would not be overcome by allegations that all the Negroes had been removed or that they were removed because they were Negroes. 380 U.S. at 222. The Court did agree that the presumption of proper use might be overcome if a prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or victim may be, is respon sible for the removal of Negroes with the result that none ever serve on petit juries. 380 U.S. at 223, 224. Swain did not limit a defendant's demonstration of a perversion of the peremptory challenge amounting to an equal protection violation to proof of such circumstances, but merely acknowledged such proof would overcome the presumption of proper use. The question remains, therefore, as to what other circumstances might demonstrate purposeful discrimination by a prosecutor in his use of his challenges. Petitioner contends that where a prosecutor volunteers his -11- reasons for exercising his peremptory challenges, the prosecutor is no longer cloaked with the presumption of correctness, but opens up the issue and the court may review his motives to determine whether the purposes of the peremptory challenge are being perverted. The court must then be satisfied that the challenges are being exercised for permissible trial-related considerations, and that the proffered reasons are genuine ones and not merely a pretext for discrimination. The Ninth and Eighth Circuit Courts of Appeals have both held that a defendant may establish a violation of the equal protection principles of Swain by such a method. Weathersby v. Morris, 708 F.2d 1A93 (9th Cir. 1983); Garrett v. Morris, 815 F.2d 509 (8th Clr. 1987). The Seventh Circuit Court of Appeals in Petitioner's case refuses "to read Swain so broadly," and insists that absent evidence that establishes a pattern of systematic exclusion of blacks larger than the single case there is no basis for an equal protection challenge even if it could be demonstrated that the prosecution exercised its peremptories on the basis of race. Teague, 820 F.2d at 834 n.6. This interpretation of Swain is questionable in light of the fact that the Batson Court attributed the requirement of proof of repeated striking over a number of cases to lower courts, 106 S.Ct. at 1720, and Justice White, author of the Swain opinion, noted in his Batson concurrence that it would not be "inconsistent with Swain for the trial judge to invalidate peremptory challenges of blacks if the prosecutor, in response to an objection to his strikes, stated that he struck blacks because he believed they were not qualified to serve as jurors, especially in the trial of a black defendant." Batson 106 S.Ct at 1725 n.* (White, J., concurring). Certiorari jurisdiction should therefore be exercised by this Court to resolve the direct conflict which exists among the circuit courts of appeals regarding whether an equal protection violation may be found, consistent with Swain, in circumstances other than where a systematic pattern of exclusion occurs over a large number of cases, a question which is not resolved by Swain or Batson. Although the Seventh Circuit opinion in this case states - 1 2 - .y > * . W W W procedurally barred pursuant to Wainwright v. Sykes, 433 U.S. 72 (1977), this circumstance does not make it inappropriate for this Court to grant certiorari. Not only did the State waive this argument by failing to raise this objection when Weathersby was cited and argued by Petitioner in the district court and court of appeals, but the court of appeals reached this argument on its merits. Cf Granberry v. Greer, 95 L.Ed.2d 119 (1987). Moreover, since Petitioner was denied relief in the state court on the ground that a Swain equal protection analysis controlled the result, Teague, 439 N.E. at 1070, thus rejecting any equal protection claim on its merits, there has been no procedural default which bars the federal courts from addressing this issue. Ulster County Court v. Allen, 442 U.S. 140 (1979). CONCLUSION Wherefore, Petitioner, Frank Dean Teague, prays that a writ of certiorari issue to the United States Court of Appeals for the Seventh Circuit. Respectfully submitted, STEVEN CLARK Deputy Defender PATRICIA UNSINN Assistant Appellate Defender Office of the State Appellate Defender State of Illinois Center 100 West Randolph St., Suite 5-500 Chicago, Illinois 60601 COUNSEL FOR PETITIONER ■13- vsm